John Regan v. Massachusetts Department of Energy Resources (SPR 20230703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0703 Chris McDonough, Esq. Legal Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney McDonough: On April 7, 2023, this office received your petition on behalf of the Department of Energy Resources (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In seven public records requests made on March 24, 2023 and March 27, 2023, John Regan, Esq., of ERG, LLC, requested records related to seven identified entities. Each of the seven individual requests sought: [1] All communications between the [Department] of Energy Resources and [Entity] for the past five (5) years; [2] All customer complaints to the Department of Energy Resources over the past five (5) years regarding [Entity]; [3] All documents and communications concerning [Entity’s] [participation and/or application to participate in the Alternative Portfolio Standard program[;] [4] All documents and communications concerning [Entity’s] receipt of or application to receive Alternative Energy Certificates (“AECs”) including but not limited to documents sufficient to show all AECs for which [Entity] has applied and all AECs it has received[;] [5] All documents and communications concerning [Entity’s] sales of qualifying eligible liquid biofuel, if any. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chris McDonough, Esq. SPR23/0703 Page 2 April 14, 2023 considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the Department seeks “an extension of 20 business days, to respond to the Request.” The Department asserts: The proposed extension is warranted because the magnitude and complexity of the Request will require extensive staff time and unduly burden the other responsibilities of this office, such that responding to the Request within the statutory timeline is beyond the capacity or the normal business hours of operation of the agency to produce the request without the extension….Further, [the Department] has met with the requestor to modify the scope of the Request in a more cost-effective and expeditious manner and the requestor has declined to modify the scope of their request. I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Attorney Regan’s requests. See G. L. c. 66, § 10(c).

Chris McDonough, Esq. SPR23/0703 Page 3 April 14, 2023 Petition to Assess Fees A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d) (iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R.

Chris McDonough, Esq. SPR23/0703 Page 4 April 14, 2023 32.06(4). Current Petition In its April 7th petition, the Department states the following: [The Department] has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requestor…These potentially responsive records may contain materials exempt from disclosure under the Public Records Law, including without limitation [Exemptions (a) and (c)]. [The Department] believes that the records may contain price, inventory and product delivery data collected by [the Department] pursuant to G.L. c. 25A, § 7 and therefore exempt under exemption (a). Further, [the Department] believes that the records may contain the personal address, phone number, and email address of private citizens which are likely exempt under exemption (c). I find the Department has met its burden to explain how, given the nature of the responsive records, the requests could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Additionally, I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Attorney Regan’s requests. See G. L. c. 66, § 10(c). Further, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: John Regan, Esq.